Disputes about unfair dismissals - Pdf

Disputes about unfair dismissals By Johanette Rheeder The right to summarily terminate employment arises when the employer or the employee breaches a material term of contract. The right to terminate summarily is confirmed by the Basic Conditions of Employment Act which states that its provisions regarding notices do not affect the rights of either the employer or the employee to terminate without notice for any course recognised by law. In cases of dismissal for misconduct, it is generally accept that that employee may be dismissed summarily. The employer bears the onus of establishing that they were grounds for dismissing without notice. Section 191 deals with disputes about unfair dismissals. If there is a dispute about the fairness of a dismissal, the dismissed employee may refer the dispute in writing a Council, if the parties to the dispute fall within the registered scope of that Council or the CCMA if no Council has jurisdiction. A referral of an unfair dismissal must be made within 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal. In the event of the employee failing to refer the dispute within 30 days of date of the dismissal, the employee can apply for condonation to the CCMA or the Council, if the employee shows good cause for being late. The employee must satisfy the Council or the Commission that a copy of the referral has been served on the employer and the CCMA will not accept the referral unless proof of service has been provided by the employee. The Council or the Commission must then attempt to resolve the dispute through conciliation.